What emergency room claims can be brought under Texas tort reform?

Under Texas law, hospital emergency room cases are a different breed.

Texas Civil Practice & Remedies Code Section 74.153 establishes a higher standard of proof in cases involving bona fide emergency medical care. Instead of the standard of general negligence, a plaintiff must show willful and wanton negligence.

General negligence, which applies in non-emergency medical care, can be proven with evidence that the physician or healthcare provider violated standard of care and the process caused harm to the patient. The standard of proof is preponderance of the evidence, which means more likely than not.

Willful and wanton negligence, on the other hand, requires proof of subjective awareness of the condition that placed the patient in an extreme degree of risk, and objective evidence that the physician or healthcare provider proceeded in a manner that disregarded that risk.

The statute has achieved its goal of creating a chilling effect on hospital emergency room (ER) medical malpractice claims. I’ve spoken with many Texas attorneys who are skittish at taking on the financial and time investment necessary to pursue any emergency medical case.

In my experience, though, it’s still possible to proceed with some ER medical negligence cases—not all, but some.

Common ER claims

Before discussing the types of ER claims that are still viable under the Texas willful and wanton negligence standard, let’s consider the most common emergency medicine malpractice claims nationwide.

According to a closed claims study by a major medical malpractice insurance carrier:

• 31% of all claims deal with neurologic or vascular conditions.

• The most common issue is the failure or delay in ordering a diagnostic test.

• The number-one diagnostic test that wasn’t ordered in claims is a CT scan.

• In claims alleging diagnostic errors, 33% dealt with managing consultants. ER physicians are basically the captain of the team in bringing medical specialists to provide input. In the end, though, it’s still up to the ER physician to make management decisions for the patient, including admission versus discharge.

• In claims alleging diagnostic errors, 32% dealt with poor monitoring of clinical status in the ER.

Viable ER claims in Texas

At Painter Law Firm, when we review a claim involving emergency room care, we start with a thorough interview of  the potential client about what happened. Sometimes this alone allows us to tell whether it seems possible to proceed with investigating an ER claim under the willful and wanton negligence requirement.

When a case passes this threshold, we direct our attention to carefully reviewing the relevant medical records. There are several things we look for.


First, we look at whether the emergency care took place at the hospital versus a freestanding ER. The reason for this is the statutory language relating to ERs only reference a “hospital emergency department.” It is our position that freestanding ERs do not benefit from the willful and wanton negligence statute, and courts around the State of Texas have agreed.

Second, it’s important to consider whether the care at issue was actually “emergency medical care.” The willful and wanton negligence statute expressly excludes care that is unrelated to a medical emergency. As a former hospital administrator, I am well aware that it’s not uncommon for patients to use emergency rooms for non-emergencies as routine as a common cold. When this type of care occurs in an ER setting, the willful and wanton negligence standard of proof doesn’t apply.

Third, keeping in mind the subjective/actual awareness component of the willful and wanton negligence statute, we look at the medical record documentation to see what the evidence shows in this regard.

If a physician or healthcare provider makes the wrong diagnosis, but reasonably handles the available clinical information and incorrect diagnosis, then it’s unlikely that we would proceed with a claim. For example, if a radiologist misinterpreted a CT scan as normal, then that would likely defeat the subjective awareness requirement.

On the other hand, if a wrong diagnosis was at play, but the doctor or provider should have acted on available clinical information within his or her knowledge, then a claim may be viable.

We were successful in an ER case against a radiologist who misread a brain CT as showing the abnormal, but still incorrect, condition. Shortly after the patient was discharged from the hospital, he had a massive stroke. Even though the radiologist’s interpretation was incorrect, we argued that if she had followed up by recommending an MRI scan based on her findings, it would have led to timely diagnosis and treatment of the patient.

Texas medical malpractice law is complex, even more so when it involves emergency room care. If you’ve been seriously injured because of care in a Texas hospital emergency room, then contact a top-rated experienced Texas medical malpractice lawyer for a free consultation about your potential case.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.